419 U.S.

956
95 S.Ct. 217
42 L.Ed.2d 173

AL STAR et al.
v.
David PRELLER et al.
No. 73-2029.

Supreme Court of the United States

October 29, 1974

The judgment is affirmed.

Mr. Justice DOUGLAS, dissenting.
Appellant owns several bookstores in Baltimore which contain, inter alia,
coin-operated viewing machines showing portions of so-called 'adult'
motion pictures. After a number of raids in which these motion pictures
were seized for lack of a proper license from the Maryland State Board of
Censors, appellant sought injunctive relief against the enforcement of
Maryland's film licensing requirements on the grounds that such
requirements violate the freedoms protected by the First and Fourteenth
Amendments. We held a predecessor Maryland statute unconstitutional in
Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649, the
three-judge District Court, however, concluded that the defects identified
in Freedman had been remedied by the present statute. 352 F.Supp. 530;
375 F.Supp. 1093.
The court below made much of the fact that the amended statute provides
for a prompt judicial determination of obscenity after denial of a license
by the Board, and that the Board must bear the burden of proof at all
stages of the proceedings. I have previously set forth, at some length, my
view that no form of censorship, no matter how speedy or efficient it may
be, is constitutionally permissible. The cost and delay involved in
contesting an adverse determination by the censor provide a very practical
deterrent to free and open expression; the inevitable result is a reluctance
even to attempt to disseminate ideas which, by virtue of their content, may

attract the censor's attention or draw his wrath. Moreover, by imposing his
sanctions in advance, the censor circumvents all the protections of the Bill
of Rights which are called into play by a criminal prosecution after the
fact. The Maryland system has no place for the right of trial by jury, nor
does it require proof beyond a reasonable doubt; step by step, by eroding
these constitutional guarantees, the state facilitates its self-appointed task
of imposing and ensuring conformity to an official standard of morality.
I adhere to the positions I have taken in Freedman v. Maryland, 380 U.S.
51, 61, 85 S.Ct. 734, 13 L.Ed.2d 649 (concurring opinion); Times Film
Corp. v. Chicago, 365 U.S. 43, 78, 81 S.Ct. 391, 5 L.Ed.2d 403
(dissenting opinion); Kingsley International Pictures Corp. v. Regents,
360 U.S. 684, 697, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (concurring opinion);
and Superior Films v. Department of Education, 346 U.S. 587, 588, 74
S.Ct. 286, 98 L.Ed. 329 (concurring opinion). I would reverse the
judgment below.
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr.
Justice MARSHALL join, dissenting.
Appellant challenged the constitutionality of the Maryland motion picture
censorship statute, Art. 66A, 1-26, Annotated Code of Maryland,
which requires that films be licensed before exhibition and forbids the
licensing of obscene films. Pursuant to 6(b) of the statute a film is
'obscene' if, 'when considered as a whole, its calculated purpose or
dominant effect is substantially to arouse sexual desires, and if the
probability of this effect is so great as to outweigh whatever other merits
the film may possess.' A three-judge court (Md.), ruled adversely to
appellant, and this Court vacated the judgment and remanded the case for
further consideration in light of Miller v. California, 413 U.S. 15, 93 S.Ct.
2607, 37 L.Ed.2d 419 (1973), and companion cases. The three-judge court
again upheld the statute.
It is my view that 'at least in the absence of distribution to juveniles or
obtrusive exposure to unconsenting adults, the First and Fourteenth
Amendments prohibit the State and Federal Governments from attempting
wholly to suppress sexually oriented materials on the basis of their
allegedly 'obscene' contents,' Paris Adult Theatre I v. Slaton, 413 U.S. 49,
113, 93 S.Ct. 26, 28, 37 L.Ed.2d 446 (1973) (Brennan, J., dissenting).
It is clear that, tested by that constitutional standard, the Maryland motion
picture censorship statute, as it defines 'obscene' in 6(b), is
constitutionally overbroad and therefore invalid on its face. For the

reasons stated in my dissent in Miller v. California, 413 U.S. 15, 47, 93

S.Ct. 2607, 37 L.Ed.2d 419 (1973), and because the judgment of the
three-judge court was rendered after Miller, I would therefore reverse.* In
that circumstance, I have no occasion to consider whether the other
questions presented merit plenary review. See Heller v. New York, 413
U.S. 483, 494, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973) (Brennan, J.,
dissenting).

Although four of us would grant and reverse, the Justice who join this opinion
do not insist that the case be decided on the merits.